Act 2 Code of Evidence Act 2006

Transcription

1 ACTS SUPPLEMENT No. 1 10th February, ACTS SUPPLEMENT to The Southern Sudan Gazette No. 1 Volume I dated 10th February, Printed by Ministry Legal Affairs and Constitutional Development, by Order of the Government. Act 2 Code of Evidence Act 2006 LAWS OF SOUTHERN SUDAN THE CODE OF EVIDENCE ACT, 2006 CHAPTER I PRELIMINARY PROVISIONS 1. Title and Commencement. 2. Repeal and Saving. 3. Authority and Application. 4. Definitions. CHAPTER II DEFINITIONS CHAPTER III PROVISIONS PERTAINING TO FACTS 5. Proving and Disproving a Fact. 6. Presumption of Fact. 7. General Restriction on Admissibility of Evidence. 8. Facts Forming Part of the same Event or Transaction. 9. Facts Causing or Caused by other Facts. 10. Facts Relating to Motive, Preparation and Conduct. 11. Explanatory and Introductory Facts. 12. Statements and Actions Referring to Common Intention. 13. Facts Inconsistent with or Affecting Probability of other Facts. 14. Facts Affecting Amount of Damages. 15. Facts Affecting Existence of Right or Custom. 16. Facts Showing State of Mind. 17. Facts Showing System. 18. Facts Showing Course of Business. 1

2 CHAPTER IV PROVISIONS REGARDING ADMISSIONS, CONFESSIONS AND OTHER TYPES OF EVIDENCE Admissions 19. Admissions Defined Generally. 20. Statements by Party to a Suit, Agent or Interested Person. 21. Statements by Persons whose Position or Liability must be Proved as against a Party to a Suit. 22. Statements by Persons Expressly Referred to by Party to a Suit. 23. Proof of Admissions against persons making them, and by or on their behalf. 24. Oral Admissions as to Contents of Documents. 25. Admissions made without Prejudice in Civil Suits. 26. Effect of Admissions. Confessions 27. Confessions Defined. 28. Confessions and Admissions Caused by Inducement, Threat or Promise. 29. Confessions made after Removal of Impression Caused by Inducement, Threat or Promise. 30. Confession of Accused while in Custody of Police Officer. 31. Confessions to Police Officers. 32. Confession otherwise Admissible not made Inadmissible due to Promise of Secrecy. 33. Information from accused Leading to Discovery of Facts. 34. Confession Implicating Co-accused. Statements by Persons who Cannot be Called as Witnesses 35. Statement by Deceased Person. 36. Admissibility of Evidence given in Previous Proceedings. Statements in Documents Produced in Civil Proceedings 37. Admissibility of Documentary Evidence as to Facts in Issue. 38. Weight to be Attached to Statement Admissible under Section 37. 2

3 Statements under Special Circumstances 39. Entries in Books of Account and Business Records. 40. Entries in Public Records. 41. Statements etc., in Maps, Charts and Plans. 42. Statement of Fact Contained in Laws and Official Gazettes. 43. Statements as to Law Contained in Books. Extent to Which Statement is Admissible 44. Extent of Admissibility. Judgments 45. Judgments Addressing Jurisdiction. 46. Judgments Concerning Property. 47. Other Judgments. 48. Inadmissible Judgments. 49. Proof that the Court was Incompetent or Judgment was Obtained by Fraud or Collusion. 50. Proof of Guilt. Opinions 51. Opinions of Experts. 52. Facts Bearing upon Opinions of Experts. 53. Opinion as to Handwriting. 54. Opinion Relating to Customs and Rights. 55. Opinions of Persons with Special Knowledge. 56. Opinion on Relationship. 57. Grounds of Opinion. Character. 58. Character in Civil Suits. 59. Good Character in Criminal Cases. 60. Bad Character in Criminal Cases. 61. Definition of Character. 3

4 CHAPTER V PROVISIONS REGARDING PROOF Facts Requiring No Proof. 62. Facts Judicially Noticed. 63. Facts of which Court shall take Judicial Notice. 64. Facts Admitted in Civil Proceedings. Oral Evidence 65. Oral Evidence. 66. Oral Evidence must be Direct. Documentary Evidence. 67. Proof of Contents of Documents. 68. Primary Evidence. 69. Secondary Evidence. 70. Proof of Documents by Primary Evidence. 71. Proof of Documents by Secondary Evidence. 72. Notice to Produce a Document. 73, Proof of Allegation That a Person Signed or Wrote a Document. 74. Proof of Execution of Document Required by Law to be Attested. 75. Proof Where no Attesting Witness Found. 76. Admission of Execution of Attested Document. 77. Proof Where Attesting Witness Denies Execution. 78. Proof of Document not Required to be Attested. 79. Comparison of Signatures, Writings and Seals. 80. Reports by Government Analysts and Geologists. 81. Photographic Evidence Certificate. Public Documents. 82. Distinction between Public and Private Documents. 83. Certified Copies of Public Documents. 84. Proof by Certified Copies. 85. Proof of Certain Public Documents. 4

5 Presumptions as to Documents. 86. Certified Documents. 88. Written Laws, Gazettes and Notices to be Prima Facie Evidence. 89. Gazettes, Newspapers, and Documents produced from Proper Custody. 90. Publications Generally. 91. Maps or Plans. 92. Laws and Judicial Reports. 93. Power of Attorney. 94. Certified Copies of Foreign Judicial Records. 95. Books, Maps and Charts. 96. Telegraphic, Electronic Mail and Fax Messages. 97. Presumption as to Due Execution. 98. Documents Twenty Years Old. Exclusion of Oral Evidence by Documentary Evidence. 99. Written Contracts, Grants and Property Distributions Evidence of Oral Agreement Evidence to Explain a Patent Ambiguity Evidence to Show Inapplicability Evidence to Explain a Latent Ambiguity Evidence of Application to One of Several Subjects Evidence of Application to one of Several Sets of Facts Evidence to Explain Special Words Evidence of Variation given by Third Parties Wills. CHAPTER VI PROVISIONS REGARDING BURDEN OF PROOF AND EFFECT OF EVIDENCE Burden of Proof Burden of Proof Incidence of Burden Proof of Particular Fact Proof of Admissibility Burden on Accused in Certain Cases. 5

6 114. Proof of Special Knowledge in Civil Proceedings Disproving Apparent Special Relationship Disproving Ownership Proof of Good Faith Conclusive Proof of Legitimacy Presumption of Death Presumption of Likely Facts. Estoppel General Estoppel Estoppel of Tenant or Licensee Estoppel of Acceptor of an Act of Exchange Estoppel of Bailee, Licensee or Agent. CHAPTER VII PROVISIONS REGARDING WITNESSES Competency and Witnesses Competence of Witnesses Evidence of Children and Corroboration Required in Criminal Cases Mute Witnesses Competence of Parties and Spouses. Compellability Compellability of a Witness. Privilege of the Court and Witnesses Privilege of Court Communications during Marriage Privilege Relating to Official Records Privilege of Official Communications Privilege Relating to Information of Commission of Offences Advocate and Client Privilege Waiving of Privilege of Advocates Communications with an Advocate. 6

7 138. Privilege of Physician and Patient Title Deeds and Incriminating Documents in the Hands of a Third Party Privileged Document in Possession of Another Business Records Accomplices Privileges to Exclude Oral Evidence of Documents Number of Witnesses. Examination of Witnesses 145. Court to decide as to the Admissibility of Evidence Types of Examination of Witnesses Order and Direction of Examinations Person Called to Produce a Document Witness to Character Meaning of Leading Question Leading Questions in Examination-in-chief and Re-examination Leading Questions in Cross-examination Examination as to whether certain formal matters are contained in a written document Cross-examination as to Previous Written Statements Cross-examination as to Credibility Compulsion to Answer Questions as to Credibility Cross-examination of Accused Person Discretion of Court to Compel Witness to Answer Questions as to Credibility Necessity for Grounds before Attacking Character Indecent or Scandalous Questions Insulting or Annoying Questions Discretion to Allow Cross-examination of one s own Witness Exclusion of Evidence which Contradicts a Witness Evidence to Impeach the Credibility of a Witness Circumstantial Questions to Confirm Evidence Proof of Consistency by Former Statements Evidence to Test Statement of Person not Available as Witness. 7

8 Refreshment of Memory 168. Refreshing Memory by Reference to Contemporaneous Writing Reference to Accurate Contemporaneous Record though facts themselves not Specifically Recalled Rights of Adverse Party as to Contemporaneous Writing. Production of Documents 171. Production of Documents of Doubtful Admissibility Document Produced in Answer to Notice to be given as Evidence if Required Consequence of Refusal to Produce Document in an Answer to a Notice Extended Powers of Court for Purpose of Obtaining Proper Evidence Examination by Assessors. Examination by Experts Improper Admission and Rejection of Evidence 176. Effect of Improper Admission or Rejection. CHAPTER VIII PROVISIONS RELATING TO BUSINESS RECORDS 177. Mode of Proof of Entries in Business Records 178. Proof and Verification of Copy Restriction on Compelling Production of Business Records Inspection of Business Records Warrant to Investigate Costs of Applications. SCHEDULE 8

9 LAWS OF SOUTHERN SUDAN THE CODE OF EVIDENCE ACT, 2006 In accordance with the provisions of Article 59(2) (b) read with Article (85) (1) of the Interim Constitution of Southern Sudan, 2005; the Southern Sudan Legislative Assembly with the assent of the President of the Government of Southern Sudan hereby makes the following 1. Title and Commencement. CHAPTER I PRELIMINARY PROVISIONS This Act may be cited as the Code of Evidence Act, 2006 and shall come into force on the date of signature by the President. 2. Repeal and Saving. The Evidence Act, 2003, is hereby repealed; provided that, all proceedings, orders and regulations taken or made hereunder, except to the extent that they are cancelled by or are otherwise inconsistent with the provisions of this Act, shall remain in full force or effect, until such time as they are lawfully repealed or amended. In no event shall the provisions of this Act affect individual cases in process or already decided. 9 Signed on 20th October, 2006

10 3. Authority and Application. (1) This Act is enacted under the powers granted under Schedule (B) of the Interim Constitution of Southern Sudan, and is part of the effort to establish minimum Southern Sudan standards and uniform norms in the areas of civil and criminal laws and judicial institutions. (2) The provisions of this Act represent the minimum standards that shall be applied to all the judicial proceedings in or before any court in Southern Sudan, except for civil and criminal proceedings under National Laws, which shall be governed by National Legislation. (3) The provisions of this Act shall not apply to proceedings before arbitration, unless otherwise specifically agreed to by the parties to a civil suit.. (4) Subject to the provisions of any other Act, written law or of any rules of court, this Act shall apply to affidavits presented before any court in Southern Sudan. (5) Except as otherwise expressly provided herein, nothing in this Act shall be deemed to derogate from the provisions of any other written law which relate to matters of evidence. 4. Definitions. CHAPTER II DEFINITIONS In this Act, unless the context otherwise requires, the following words and expressions shall carry the meanings assigned to them hereunder Admissible means that the evidence presented to a court may be accepted and considered by that court; 10

11 Advocate means a person legally authorised to practise law in Southern Sudan, and any other recognised jurisdiction, and includes any person entitled to act as an advocate, whilst so acting in connection with the duties of his or her office; Affidavit means a document that the law allows to be used, in certain situations and proceedings, in lieu of testimony; Business means every business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit, including, but not limited to hospitals, churches, and schools; Business records includes records of any form that meet the requirements of Chapter VIII of this Act; Court includes all judges, magistrates, and all persons legally authorised to take evidence except arbitrators; Evidence denotes the means by which an alleged matter of fact, the truth of which is submitted for investigation, is proved or disproved; and without prejudice to the foregoing generality, includes statements by accused persons, admissions and observations by the court in its judicial capacity; Facts includes (a) any item of significance, no matter how small it may be which the court considers in reaching its decision; (b) (c) any thing, state of things, or relation of things, capable of being perceived by the senses; and any mental condition of which any person is conscious. Fact in Issue means any fact from which, either by itself or in connection with other facts, the existence, non-existence, nature or extent of any right, liability or disability, asserted or denied in any suit or proceeding, necessarily follows; 11

12 Gazette means the Southern Sudan Gazette, established by the GoSS for publication of laws and any supplements thereto; GoSS means the Government of Southern Sudan; Judicial Proceedings means any proceedings before a court in the course of which it is lawful to take evidence under oath or custom; Marriage means a marriage, which is by law or custom binding during the lifetime of the spouses thereto or as the case may be, unless dissolved according to law or custom and includes customary and traditional marriages; National Laws or National Legislation means those laws and legislation enacted by the Government of National Unity; Offence includes the abetment of, or an attempt to commit, the offence; Person includes a natural person, firm, association, organisation, partnership, business organisation, corporation, or public entity; President means the person serving as the President of GoSS; Privilege is a rule of law that is to protect a particular relationship or interest, either permits a witness to refrain from giving testimony he or she otherwise could be compelled to give, or permits someone, usually one of the parties to prevent the witness from revealing certain information; Public Body means (a) GoSS, Legislative, Executive, Judiciary or any Ministry, the Bank of Southern Sudan, or any corporation, institution or undertaking thereof; 12

13 (b) (c) (d) any State government, Legislative, Executive, Judiciary, Ministry or department, institution, or undertaking thereof; a local authority; or any authority, board, commission, committee or other body, whether paid or unpaid, which is invested with or is performing, whether permanently or temporarily, functions of a public nature; Public Servant means a person in the service of, or holding office with a public body, whether that service or office is permanent, temporary, paid for or without pay; Spouse means either the husband or wife of a marriage which is by law or custom binding during the lifetime of both parties, as the case may be, unless dissolved according to law or custom and includes customary and traditional marriages. (2) Terms not specifically defined herein, which are used in the Penal Code or the Code of Criminal Procedure as in force from time to time, shall have the meanings set forth in those Codes, unless the context is inconsistent, and except where it is otherwise expressly provided. CHAPTER III PROVISIONS PERTAINING TO FACTS 5. Proving and Disproving a Fact. (1) A fact is proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, in the circumstances of the particular case, to act upon the supposition that it exists. 13

14 (2) A fact is disproved when, after considering the matters before it, the court either believes that it does not exist, or considers its non-existence so probable that a reasonable man ought, in the circumstances of the particular case, to act upon the supposition that it does not exist. (3) A fact is not proved when it is neither proved nor disproved. 6. Presumption of Fact. (1) Whenever it is provided by law that the court may presume a fact, it may either regard such fact as proved, unless and until it is disproved, or may call for proof of such fact. (2) Whenever it is directed by law that the court shall presume a fact, it shall regard such fact as proved, unless and until it is disproved. (3) When one fact is declared by law to be conclusive proof of another, the court shall, on proof of the one fact, regard the other as proved, and shall not allow evidence to be given for the purpose of disproving such fact. 7. General Restriction on Admissibility of Evidence. Subject to the provisions of this Act and of any other relevant law, no evidence shall be given in any suit or proceeding except evidence of the existence or non-existence of a fact in issue, and of any other fact declared by any provision of this Act to be relevant. 8. Facts Forming Part of the same Event or Transaction. Facts which though not in issue, are so connected with a fact in issue as to form part of the same event or transaction, are relevant whether they occurred at the same time and place or at different times and places. 14

15 9. Facts Causing or Caused by other Facts. Facts which are the occasion, cause or effect, immediate or otherwise, of relevant facts or facts in issue, or which constitute the state of things under which they happened or which afforded an opportunity for their occurrence or transaction are relevant. 10. Facts Relating to Motive, Preparation and Conduct. (1) Any fact is relevant which shows or constitutes a motive or preparation for any fact in issue or a relevant fact. (2) The conduct of any party, or of any agent of a party, to any suit or proceeding, in reference to such suit or proceeding or in reference to any fact in issue therein or relevant thereto, and the conduct of any person against whom the subject of any proceeding is relevant, if such conduct influences or is influenced by any fact in issue or relevant fact, and whether it was previous or subsequent thereto. (3) When evidence of the conduct of a person is relevant, any statement made to him or her, or in his or her presence and hearing which affects such conduct, is relevant. (4) The word conduct in the foregoing subsections 2 and 3 does not include statements accompanying and explaining acts other than statements. 11. Explanatory and Introductory Facts. Facts necessary to explain or introduce a fact in issue or relevant fact, or which support or rebut an inference suggested by such a fact, or which establish the identity of any thing or person whose identity is relevant, or fix the time or place at which any fact in issue or relevant fact happened, or which show the relation of parties by whom any such fact was transacted, are relevant in so far as they are necessary for that purpose. 15

16 12. Statements and Actions Referring to Common Intention. Where there are reasonable grounds to believe that two or more persons have conspired together to commit an offence or an actionable wrong, anything said, done or written by any one of such persons in reference to their common intention, after the time when such intention was first entertained by any one of them, is a relevant fact as against each of the persons believed to be so conspiring, as well as for the purpose of proving the existence of the conspiracy as for the purpose of showing that any such person was a party to it. 13. Facts Inconsistent with or Affecting Probability of other Facts. Facts not otherwise relevant are relevant (a) if they are inconsistent with any fact in issue or any relevant fact; or (b) if by themselves or in conjunction with other facts they make the existence or non-existence of any fact in issue or any relevant fact highly probable or improbable. 14. Facts Affecting Amount of Damages. In suits in which damages are claimed, any fact which will enable the court to determine the amount of damages which ought to be awarded is relevant. 15. Facts Affecting Existence of Right or Custom. Where the existence of any right or custom is in question, the following facts are relevant (a) any event or transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied, or which was inconsistent with its existence; or 16

17 (b) particular instances in which the right or custom in question was claimed, recognised, or in which its exercise was disputed, asserted or departed from. 16. Facts Showing State of Mind. (1) Facts showing the existence of any state of mind, such as intention, knowledge, good faith, negligence, rashness, illwill or good will, towards any particular person, or showing the existence of any state of body or bodily feeling, are relevant, when the existence of any such state of mind, state of body or bodily feeling is in issue or relevant. (2) A fact relevant within the meaning of subsection (1) above, as showing the existence of a state of mind must show that the state of mind exists, not generally, but in reference to the particular matter in question. (3) Where, upon the trial of a person accused of an offence, the previous commission by the accused of an offence is relevant within the meaning of subsection (1) above, the previous conviction of such person is also relevant. 17. Facts Showing System. When there is a question whether an act was accidental or intentional, or done with a particular knowledge or intention, the fact that such act formed part of a series of similar occurrences, in each of which the person doing the act was involved, is relevant. 18. Facts Showing Course of Business. When there is a question whether a particular act was done, the existence of any course of business, according to which it would have naturally been done, is relevant. 17

18 CHAPTER IV PROVISIONS REGARDING ADMISSIONS, CONFESSIONS AND OTHER TYPES OF EVIDENCE Admissions 19. Admissions Defined Generally. An admission is a statement, oral or documentary, which suggests any inference as to a fact in issue or relevant fact, and which is made by any of the parties or persons in the circumstances hereinafter mentioned. 20. Statements by Party to a Suit, Agent or Interested Person. (1) Statements made by a party to the proceeding, or by an agent for any such party, whom the court regards in the circumstances of the case as expressly or impliedly authorised by him or her to make them, are admissions. (2) Statements made by parties to suits, suing or being sued in a representative character, are not admissions unless they were made while the party making them held such a representative character. (3) Statements made by persons who have any proprietary or pecuniary interest in the subject matter of the proceeding, and who make the statement in the character of persons so interested are admissions. (4) Statements made by persons from whom the parties to a suit have derived their interest in the subject matter of the suit, are admissions if they are made during the continuance of interest of the persons making the statements. 18

19 21. Statements by Persons whose Position or Liability must be Proved as against a Party to a Suit. Statements made by persons whose position or liability it is necessary to prove as against any party to a suit, are admissions if such statements would be admissible as against such persons in relation to such position or liability in a suit brought by or against them, and if they are made whilst the person making them occupies such position or is subject to such liability. 22. Statements by Persons Expressly Referred to by Party to a Suit. Statements made by persons to whom a party to the suit, has expressly referred to information in reference to a matter in dispute are admissions. 23. Proof of Admissions against persons making them, and by or on their behalf. Subject to the provisions of this Act, an admission may be proved as against the person who makes the admission, or his or her representative in interest, but an admission cannot be proved by or on behalf of the person who makes it or by his or her representative in interest, except in the following cases (a) (b) (c) when it is of such a nature that, if the person making it were dead, it would be admissible as between third persons under section 35 of this Act; when it consists of a statement of the existence of any state of mind or body, relevant or in issue, made at or about the time when such state of mind or body existed, and is accompanied by conduct rendering its falsehood improbable; or if it is relevant otherwise than as an admission. 19

20 24. Oral Admissions as to Contents of Documents. Oral admissions as to the contents of a document may not be proved unless and until the party proposing to prove them shows that he or she is entitled to give secondary evidence of the contents of such document, under this Act or unless the genuineness of a document produced is in question. 25. Admissions made without Prejudice in Civil Suits. (1) In civil suits no admission may be admitted if it is made either upon an express condition that evidence of it is not to be given or in circumstances from which the court can infer that the parties agreed together that evidence of it should not be given. (2) Nothing in subsection (1) above, shall be taken to exempt any advocate from giving evidence of any matter of which he or she may be compelled to give evidence under section 135 of this Act. 26. Effect of Admissions. Admissions are not conclusive proof of the matters admitted, but they may operate as estoppels under the provisions hereinafter contained. 27. Confession Defined. Confessions A confession is a direct acknowledgment of criminal guilt by an accused, and may be comprised of words or conduct, or a combination of words and conduct. 20

21 28. Confessions and Admissions caused by Inducement, Threat or Promise. A confession or any admission of a fact tending to show guilt, made by an accused person is not admissible in a criminal proceeding if, in the opinion of the Court, the confession or admission appears to have been made under any inducement, torture, duress, or threat, or as a result of a promise made in connection with the charge against the accused person, by or from a person in authority, and which is sufficient, in the opinion of the court, to give the accused person grounds which would appear to him or her reasonable for supposing that by making the confession of the admission, he or she would gain an advantage or avoid an evil act of any nature in reference to the proceedings against him or her. 29. Confessions made after Removal of Impression Caused by Inducement, Threat or Promise. If such a confession as is referred to in section 28, above, is made after the impression caused by any such inducement, threat or promise has, in the opinion of the court, been fully removed, it is admissible. 30. Confession of Accused while in Custody of Police Officer. No confession made by any person whilst he or she is in the custody of a police officer shall, be proved as against such person, unless such confession is made in the immediate presence of an attorney, a judge or magistrate. 31. Confessions to Police Officers. No confession made to a police officer shall be proved against a person accused of any offence unless, such confession is confirmed by the accused before an attorney, judge or magistrate. 21

22 32. Confession otherwise Admissible not made Inadmissible due to Promise of Secrecy. If a confession made by an accused person is otherwise admissible, it does not cease to be admissible merely because: it was made under a promise of secrecy; in consequence of a deception practised on him or her for the purpose of obtaining such confession; or the person was drunk provided that the circumstances surrounding his or her confession indicate that the person understood what he or she was saying, or the confession was made in answer to questions which the accused need not have answered, whatever may have been the form of those questions, or he or she was not warned that he or she was not bound to make such confession or, he or she was not warned that such confession might be admissible as evidence against him or her. 33. Information from Accused Leading to Discovery of Facts. Notwithstanding the provisions of sections 28, 30 and 39 of this Act, when any fact is discovered in consequence of information received from a person accused of any offence, such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. 34. Confession Implicating Co-accused. (1) When two or more persons are being tried jointly for the same offence, and a confession made by one of such persons affecting him or herself and some others, of such persons is proved, the court may take the confession only as against the person who made the confession. (2) In this section confession means any words or conduct, or combination of words and conduct, which has the effect of admission in terms of either of an offence or substantially of all the facts which constitute an offence. 22

23 Statements by Persons who Cannot be Called as Witnesses 35. Statement by Deceased Person. Statements, written or oral, of admissible facts made by a person who is dead, or who cannot be found, or who has become incapable of giving evidence or whose attendance cannot be procured, without an amount of delay or expense which under the circumstances of the case, appears to the court to be unreasonable, are themselves admissible in the following cases (a) (b) (c) relating to cause of death: when the statement is made by a person as to the cause of his or her death, or as to any of the circumstances of the transaction which resulted in his or her death, in cases in which the cause of that person s death comes into question and such statements are admissible whether the person who made them was or was not, at the time when they were made, under expectation of death, and whatever may be the nature of the proceeding in which the cause of his or her death comes into question; made in the course of business: when the statement was made by such person in the ordinary course of business, and in particular when it consists of an entry or memorandum made by him or her in books or records kept in the ordinary course of business or in the discharge of professional duty; or of an acknowledgment written or signed by him or her of the receipt of money, goods, securities or property of any kind; or of a document used in commerce, written or signed by him or her, or of the date of a letter or other document usually dated, written or signed by him or her; against the interest of maker: when the statement is against the pecuniary or proprietary interest of the person making it, or when, if true, it would expose him or her or would have exposed him or her to a criminal prosecution or to a suit for damages; 23

24 (d) (e) (f) (g) an opinion as to public right or custom: when the statement gives the opinion of any such person as to the existence of any public right or custom or matter of public or general interest, of the existence of which, if it existed, he or she would have been likely to be aware, and when such statement was made before any controversy as to such right, custom or matter had arisen; relating to existence of relationship: when the statement relates to the existence of any relationship by blood, marriage, or adoption between persons as to whose relationship by blood, marriage or adoption the person making the statement had special means of knowledge, and when the statement was made before the question in dispute was raised; relation to family affairs: when the statement relates to the existence of any relationship by blood, marriage or adoption between persons deceased, and is made in any will or deed relating to the affairs of the family to which any such deceased person belonged, or in any family pedigree or upon any tombstone, family portrait or other thing on which such statement was made before the question in dispute was raised; and relating to an event or transaction creating or asserting a custom (i) (ii) when the statement is contained in any deed or other document which relates to any such transaction as mentioned in section 15(a) of this Act, made by several persons and expressing feelings; when the statement was made by a number of persons, expressing feelings or impressions on their part relevant to the matter in question. 24

25 36. Admissibility of Evidence given in Previous Proceedings. (1) Evidence given by a witness in a judicial proceeding is admissible in a subsequent judicial proceeding, or at a later stage in the same proceeding, for the purpose of proving the facts which it states, in the following circumstance (a) (b) where the witness is dead, or cannot be found, or is incapable of giving evidence, or is kept out of the way by the adverse party, or where his or her presence cannot be obtained without an amount of delay or expense which in the circumstances of the case the court considers unreasonable; and where, in the case of a subsequent proceeding (i) (ii) the proceeding is between the same parties or their representatives in interest; the adverse party in the first proceeding had the right and opportunity to cross-examine; and (iii) the questions in issue were substantially the same in the first as in the second proceeding. (2) For the purposes of this section (a) (b) the expression judicial proceeding shall be deemed to include any proceeding in which evidence is taken by a person authorised by law to take that evidence under oath; and a criminal trial or inquiry shall be deemed to be a proceeding between the prosecutor and the accused. 25

26 Statements in Documents Produced in Civil Proceedings 37. Admissibility of Documentary Evidence as to Facts in Issue. (1) In any civil proceedings where direct oral evidence of a fact would be admissible, any statement made by a person in a document and tending to establish such fact shall, on production of the original document, be admissible as evidence of such fact if the following conditions are satisfied (a) if the maker of the statement either (i) had personal knowledge of the matters dealt with by the statement; or (ii) where the document in question is or forms part of a record purporting to be a continuous record, made the statement (in so far as the matters dealt with thereby are not within his or her personal knowledge) in the performance of a duty to record information supplied to him or her by a person who had, or might reasonably be supposed to have, personal knowledge of those matters; and (b) if the maker of the statement is called as a witness in the proceedings; provided that, the condition that the maker of the statement shall be called as a witness need not be satisfied if he or she is dead, or cannot be found, or is incapable of giving evidence, or if his or her attendance cannot be procured without an amount of delay or expense which in the circumstances of the case appears to the court unreasonable. (2) In any civil proceedings, the court may at any stage of the proceedings, if having regard to all the circumstances of the case it is satisfied that undue delay or expense would otherwise be caused, order that such a statement as mentioned in subsection (1), above, shall be admissible or may, without any such order having been made, admit such a statement in evidence 26

27 (a) (b) notwithstanding that the maker of the statement is available but is not called as a witness; and notwithstanding that the original document is not produced, if in lieu thereof there is produced a copy of the original document or of the material part thereof certified to be a true copy in such manner as may be specified in the order or the court may approve, as the case may be. (3) Nothing in this section shall render admissible any statement made by a person interested at a time when proceedings were pending or anticipated involving a dispute as to any fact which the statement might tend to establish. (4) For the purposes of this section, a statement in a document shall not be deemed to have been made by a person unless the document or the material part thereof was written, made or produced by him or her with his or her own hand, or was signed or initialed by him or her or otherwise recognised by him or her in writing as one for the accuracy of which he or she is responsible. (5) For the purpose of deciding whether or not a statement is admissible under this section, the court may draw any reasonable inference from the form or contents or the document in which the statement is contained, or from any other circumstances, and may, in deciding whether or not a person is fit to attend as a witness, act on a certificate purporting to be the certificate of a medical practitioner. 38. Weight to be Attached to Statement Admissible under Section 37. (1) In estimating the weight, if any, to be attached to a statement rendered admissible by section 37 above, regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement, and in particular to the question 27

28 whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent facts. (2) For the purpose of any rule of law or practice requiring evidence to be corroborated or regulating the matter in which uncorroborated evidence is to be treated, a statement rendered admissible by section 37 above, shall not be treated as corroboration of evidence given by the maker of such a statement. Statements under Special Circumstances 39. Entries in Books of Account and Business Records. Entries in books of account and business records regularly kept in the course of business are admissible whenever they refer to a matter into which the court has to inquire, and provided they comply with Chapter VIII of this Act, such statements shall not alone be sufficient evidence to charge any person with liability. 40. Entries in Public Records. An entry in any public or other official book, register or record, stating a fact in issue or a relevant fact, and made by a public servant in the discharge of his or her official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register or record is kept, is in itself admissible. 41. Statements etc., in Maps, Charts and Plans. Statements and representations of facts in issue or relevant facts made in published maps or charts generally offered for public sale, or in maps or plans made under the authority of any Government, as to matters usually stated or represented in such maps, charts or plans, are themselves admissible. 28

29 42. Statement of Fact Contained in Laws and Official Gazettes. When the court has to form an opinion as to the existence of any fact of a public nature, any statement which is made of it shall be admissible (a) in any written national or Southern Sudan law, or in any notice purporting to be made in pursuance of any such written law, where the law or notice (as the case may be) purports to be printed by or under the authority of Southern Sudan; or (b) in any written law in force in any country, or in any notice purporting to be made in pursuance of any such written law, where the law or notice (as the case may be) purports to be printed or published by or under the authority of the Government of that country. 43. Statements as to Law Contained in Books. When the court has to form an opinion as to a law of any country, any statement of such law contained in a book purporting to be printed or published under the authority of the Government of such country and to contain any such law, and any report of a ruling of the courts of such country contained in a book purporting to be a report of such rulings, is admissible. Extent to Which Statement is Admissible 44. Extent of Admissibility. When any statement of which evidence is given forms part of a longer statement, or of a conversation, or of an isolated document, or is contained in a document which forms part of a book or of a connected series of letters or papers, evidence shall be given of so much and no more of such longer statement, or of such conversation, document, book or series, as the court considers necessary in the particular case to a full understanding of the nature and effect of the statement, and of the circumstances in which it was made. 29

30 Judgments 45. Judgments Addressing Jurisdiction. The existence of any judgment, order or decree which by law prevents any court from taking cognizance of a suit or holding a trial, may be proved when the question is whether such court ought to take cognizance of such suit or to hold such trial. 46. Judgments Concerning Property. (1) A final judgment, order or decree of a competent court which confers upon or takes away from any person any legal character, or which declares any person to be entitled to any specific thing, not as against any specific person but absolutely, is admissible when the existence of any such thing, is admissible. (2) Such judgment, order or decree is conclusive proof that (a) (b) (c) (d) any legal character which it confers accrued at the time when such judgment, order or decree came into force or effect; any legal character to which it declares any such person to be entitled accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his or her property. 30

31 47. Other Judgments of a Public Nature. Judgments, orders or decrees, other than those mentioned in section 46 above, are admissible if they relate to matters of a public nature relevant to the inquiry, but such judgments, orders or decrees are not conclusive proof of what they state. 48. Inadmissible Judgments. Judgments, orders or decrees other than those mentioned in section 45, 46 and 47 above, are inadmissible except where the existence of such judgment, order or decree is a fact in issue or is relevant under some other provision of this Act. 49. Proof that the Court was Incompetent or Judgment was Obtained by Fraud or Collusion. Any party to a suit or other proceeding may show that any judgment, order or decree which is admissible under the provisions of this Act and which has been proved by the adverse party, was delivered by a court not competent to deliver it, or that it was otherwise obtained by fraud or collusion. 50. Proof of Guilt. A final judgment of a competent court in any criminal proceedings which declares any person to be guilty of a criminal offence shall, after the expiry of the time limit for an appeal against such judgment or after the date of the decision of any appeal therein, whichever is the latest, be taken as conclusive evidence that the person so convicted was guilty of that offence as charged. 31

32 51. Opinions of Experts. Opinions When the court has to form an opinion upon a point related to a foreign law, or of science or art, or as to identity or genuineness of handwriting or finger print or other impressions, opinions upon that point are admissible if made by an expert specially skilled in such foreign law, science, art, or in questions as to identity or genuineness of handwriting or finger print or other impressions. 52. Facts Bearing upon Opinions of Experts. Facts not otherwise admissible are admissible if they support or are inconsistent with the opinions of experts, when such opinions are admissible. 53. Opinion as to Handwriting. (1) When the court has to form an opinion as to the person by whom any document was written or signed, the opinion of any person acquainted with the handwriting of the person by whom it is supposed to be written or signed that it was or was not written or signed by that person, is admissible. (2) For the purposes of subsection (1) above, and without prejudice to any other means of determining the question, a person is said to be acquainted with the handwriting of another person when he or she has seen that person write, or when he or she has received documents purporting to be written by that person in an answer to documents written by himself or herself or under his or her authority and addressed to that person, or when in the ordinary course of business documents purporting to be written by that person have been habitually submitted to him or her. 32

33 54. Opinion Relating to Customs and Rights. (1) When the court has to form an opinion as to the existence of any general custom or right, the opinions as to the existence of such custom or right of persons who would be likely to know of its existence if it existed are admissible. (2) For the purposes of this subsection (1) the expression general custom or right includes customs or rights common to any class of persons. 55. Opinions of Persons with Special Knowledge. The opinions of persons having special knowledge are admissible when the court has to form an opinion as to (a) (b) (c) the usages and tenets of any association, body of men or family; the constitution and government of any religious or charitable foundation; or the meaning of words or terms used in particular payam, county, state, or by particular classes of people. 56. Opinion on Relationship. When the court has to form an opinion as to the relationship of one person to another, the opinion, expressed by conduct, as to the existence of such relationship of any person who, as a member of the family or otherwise, has special knowledge on the subject, is admissible; provided that, such an opinion shall not be sufficient to prove a marriage in a prosecution for adultery or in proceedings for a divorce, or in any proceedings for damages against an adulterer. 33

34 57. Grounds of Opinion. Whenever the opinion of any living person is admissible, the grounds on which such opinion is based are also admissible. 58. Character in Civil Suits. Character. (1) In civil suits, the fact that the character of any person concerned is such as to render probable or improbable any conduct imputed to him or her is inadmissible except in so far as such character appears from facts otherwise admissible. (2) In civil suits, the fact that the character of any person is such as to affect the amount of damages, is admissible. 59. Good Character in Criminal Cases. In criminal proceedings, the fact that the person accused is of good character is admissible. 60. Bad Character in Criminal Cases. (1) In criminal proceedings the fact that the accused person has committed or had been convicted of or charged with any offence other than that with which he or she is being charged, or is of bad character, is inadmissible unless (a) (b) such evidence is otherwise admissible as evidence of a fact in issue or is directly relevant to a fact in issue; or the proof that he or she has committed or been convicted of such other offence is admissible under section 16 or section 17 of this Act, to show that he or she is guilty of the offence with which he or she is being charged; 34

35 (c) (d) (e) he or she has personally or by his or her advocate asked questions of a witness for the prosecution with a view to establishing his or her own character, or has given evidence of his or her own good character; the nature or conduct of the defence is such as to involve imputations on the character of the complainant or of a witness for the prosecution; or he or she has given evidence against any other person charged with the same offence, with respect to the foregoing, the court may, in its discretion, direct that specific evidence on the ground of the exception referred to in subsection (1)(d) above shall not be admissible if, in the opinion of the court, the prejudicial effect of such evidence upon the person accused will so outweigh the damage done by imputations on the character of the complainant or of any witness for the prosecution as to prevent a fair trial. (2) Notwithstanding the provisions of subsection (1) above, evidence of previous conviction for an offence may be given in a criminal trial after conviction of the accused person, for the purpose of affecting the sentence to be awarded by the court. 61. Definition of Character. In sections 58, 59, and 60 of this Act, the word character includes both reputation and disposition; but, except as provided in section 59 of this Act, evidence may be given only of general reputation and general disposition, and not of particular acts by which reputation or disposition were shown. 35

36 CHAPTER V PROVISIONS REGARDING PROOF 62. Facts Judicially Noticed. Facts Requiring No Proof. No fact of which the court shall take judicial notice need be proved. 63. Facts of which Court shall take Judicial Notice. (1) The courts shall take judicial notice of the following facts (a) (b) (c) (d) (e) the Constitutions, written laws, decisions, rules and principles, written or unwritten, having the force of law, whether in force or having such force as aforesaid before, at or after the commencement of this Act, at the GoSS or State level in any part of Southern Sudan; GoSS or State level rules of procedure; the general course of proceedings and privileges of the Southern Sudan Legislative Assembly but not the transaction in their journals; any formations or structures of the Sudan People s Liberation Army Forces and the Joint Integrated Units; the public seal of Southern Sudan, the seals of all the courts of Southern Sudan; and all seals which any person is authorised by any written law to use; 36